Judge declares mistrial in first federal Vioxx case

TOM FOWLER and ANNE BELLI, Copyright 2005 Houston Chronicle

Published 6:30 am, Monday, December 12, 2005

A federal judge declared a mistrial in the Vioxx case this morning, after jurors failed to reach a verdict in the suit filed by the wife of man who died of a heart attack after taking the pain medication for less than a month.

At 8 a.m. the judge told attorneys for both sides that the 9-member panel was at an impasse, ending deliberations that began last Thursday in the first Vioxx trial in federal court.

Evelyn Irvin Plunkett, the widow of 53-year-old Richard "Dicky'' Irvin, sued the drug giant, claiming he died in May 2001 after taking Vioxx for back pain.

Merck withdrew the drug from the market in September 2004 after a study showed it doubled the risk of heart attacks and strokes in patients who took it for 18 months or longer.

Plunkett's attorney told the jury in closing arguments Thursday that by February 2001, Merck should have either pulled Vioxx off the market or at least issued a warning.

During the closing arguments Thursday Merck attorney Phil Beck told the jury that Merck believes Irvin's short-term use of Vioxx played no role in his death. Instead, plaque in his arteries ruptured and formed a blood clot, which happens to 300,000 to 400,000 people every year, he said.

Plaintiff's attorney Jere Beasley described the mistrial as a moral victory, and said he looked forward to retrying the trial.

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Beck said he and his client would regroup and get ready to try the case again as soon at the judge sets it.

Attorneys for both sides said they were not aware of how the jury was split over the questions and that they were not allowed to approach the jurors.

Both Beasley and Beck questioned the accuracy of a press report over the weekend describing the jury split and discussions made in the judges chambers. They said someone in the case would have had to violate a court issued gag order to reveal such information.

No date has been set for a new trial. In early trading Monday Merck stock was down 44 cents at $28.69 per share.

The first federal trial of the once-blockbuster drug is being held in Houston because of hurricane damage to the New Orleans courthouse.

Beck expects arguments for both sides to be very much the same, but said there's one thing he'll likely do differently next trial:

"I'll probably go to New Orleans rather than Houston,'' he said.

In August, a Brazoria County jury awarded $253 million to the widow of a former runner who died of a heart attack after taking the drug. But last month, a New Jersey jury found no wrongdoing in the case of an postal worker who suffered a non-fatal heart attack.

Merck faces an estimated 7,000 lawsuits by former Vioxx users or their families.

During its closing arguments the plaintiff's attorneys said the company was at fault for failing to warn of the dangers of the drug.

"If Merck simply warned of the dangers, we wouldn't be here,'' Andy Birchfield told the jury during his closing arguments. "You have the power to make a difference.''

On Thursday, reports surfaced that the New England Journal of Medicine alleged Merck withheld key data from a 2000 Vioxx study. That led Plunkett's attorneys to ask for a mistrial, according to the Wall Street Journal.